52 Ind. App. 114 | Ind. Ct. App. | 1913
This was an action by appellee against appellant for damages for the death of appellee’s minor son, caused by the alleged negligent acts of appellant.
The complaint was in two paragraphs, to each of which appellant’s separate demurrer ivas overruled. Issues were joined by a general denial filed to each paragraph of the complaint. The cause was tried by a jury, and a verdict rendered in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and judgment rendered on the verdict.
The errors assigned are as follows: (l).The overruling of appellant’s demurrer to each paragraph of the complaint; (2) the overruling of appellant’s motion for a new trial.
The first paragraph of the complaint, in substance, alleges that appellant, on June 24, 1908, owned and operated an
The second paragraph of complaint is substantially the same as the first, except that it is alleged therein that appellant, by its motorman, agents and servants, wilfully ran its car against said Virgil Maberry, and injured him, from which injuries he died, etc.
Section 343 Burns 1908, Subd. 2, §338 R. S. 1381, on the subject of the complaint, says it shall contain “a statement of the facts constituting the cause of action, in plain.and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. ’ ’
The second paragraph of the complaint is based on the alleged wilful misconduct of appellant’s servants, and is sufficient to withstand a demurrer. The demurrers were properly overruled.
In support of the motion for a new trial, appellant insists that the evidence fails utterly to sustain the charge of wilfulness. On this issue, the verdict, it insists, is contrary to law, and therefore appellant’s second instruction tendered, and refused by the court, which peremptorily directed the jury to return a verdict for the defendant, should have been sustained.
In the case of Cleveland, etc., R. Co. v. Starks (1910), 174 Ind. 345, 349, 92 N. E. 54, it is said: “It must be made to
The evidence supports the verdict. The motion for a new trial was properly overruled.
Judgment affirmed.
Note. — Reported in 100 N. E. 401. See, also, under (1) 36 Cyc. 1573; (2) 29 Cyc. 570; (3) 36 Cyc. 1600; (4) 16 Cyc. 1081; (5) 38 Cyc. 1667; (6) 36 Cyc. 1632; (7) 36 Cyc. 1521; (8) 13 Cyc. 385; (9) 38 Cyc. 1778; (10) 2 Cyc. 1044; (11, 12) 13 Cyc. 375. As to the negligence in dealing with children, see 49 Am. St. 406. As to the measure of damages recoverable by a parent for the death of a minor child by wrongful act, see Ann. Cas. 1912 C 58. On the right of persons in charge of train to presume that child will get out of danger, see 6 L. R. A. (N. S.) 283. As to the question of negligent operation of train at crossing as ground of liability for killing or injuring child, incapable of contributory negligence, that was aware of train’s approach, see 34 L. R. A. (N. S.) 645.